Thursday, October 30, 2008

New twists in the AIPAC case yesterday as the defense for two pro-Israel lobbyists accused of illegally obtaining and disclosing American national security secrets argued that some of the data the men allegedly conspired to reveal came directly from the Israeli government and was not actually secret.

At a hearing before the U.S. Court of Appeals for the 4th Circuit in Richmond, Va., three judges spent more than 90 minutes wrestling with the issue of how much classified information the defense should be permitted to introduce in the case of Steven Rosen and Keith Weissman, who were fired from top posts at the American Israel Public Affairs Committee after prosecutors disclosed the probe.

The beginning of yesterday's unusual court session was held in public, but about halfway through, the lawyers and the judges retreated behind closed doors in a specially-cleared and guarded courtroom to discuss the most sensitive aspects of the case. As they waited for the arguments to begin, defense lawyers leafed through fat binders marked in orange with the words, “TOP SECRET.”

Rosen and Weissman were indicted in 2005 on charges that they gathered secrets from U.S. officials and passed the confidential information to journalists, foreign diplomats and others in violation of the Espionage Act. The defendants have argued that what they did is no different than what journalists do every day when they try to glean sensitive information from government sources and publish it. Trial dates for the pair, who were fired from AIPAC, have been repeatedly canceled as wrangling over the classification issues dragged on.

The government filed the appeal heard yesterday, arguing that Judge T.S. Ellis III erred when he ruled the defendants could use a State Department document and another FBI document at a future trial.

“That information is not actually relevant to the crime that was charged,” an attorney in the Justice Department’s counterespionage section, Thomas Reilly, told the judges.

Rosen’s attorney, Abbe Lowell, said the State Department document demonstrates that Israel was circulating the intelligence reports his client is accused of disclosing to other AIPAC employees and a foreign national not named in the indictment.

“You have to be able to prove what the Israelis knew,” Lowell said. “In our defense, it is important that this information, discussed down the line by our client, is Israel-based.”

Lowell did not detail the Israeli information in the open session, but declassified court records indicate the document describes intelligence about the Karine-A, a ship Israel seized in 2002 in the Red Sea. Israel said the vessel was loaded with rifles, anti-tank missiles, rockets, mortars and other weapons destined for the Gaza Strip.

Sources close to the case said the State Department memo relates to a briefing a top Israeli intelligence official, Gen. Yossi Kuperwasser, gave American diplomats about the Karine-A during a trip to Washington in January 2002. Aipac’s Rosen got a similar briefing from Kuperwasser the same day.

Lowell suggested that the State Department memo was nearly identical to a note Rosen sent to fellow Aipac employees. “You’d be able to draw a line between the allegation and the assertion and where it’s from,” the defense attorney said.

Lowell also said a former State Department official, Carl Ford Jr., was prepared to testify that the bulk of the memo was actually unclassified.

“Who gets to define what’s classified is the Executive Branch,” Reilly insisted.The nature of the FBI document in dispute was less clear, but a lawyer for Weissman, Baruch Weiss, said prosecutors want to prevent the defense from disputing which portion of the report made it so sensitive.

“The government wants to use the part of the document that is helpful to them and they don’t want us to use the part of the document that is helpful to us,” Weiss said.The appeals judges, Robert King, Roger Gregory and Dennis Shedd, issued no immediate decision, but one said he was reluctant to disturb the rulings Judge Ellis arrived at after protracted hearings. “You have a very high hill to climb, especially with the time the judge spent in this case,” Judge Shedd told Mr. Reilly.

All three appeals jurists expressed skepticism about the government’s claim that the ruling on classified information opened up Judge Ellis’s other pre-trial decisions for immediate appeal. “That would be a change to what we normally apply,” Judge Shedd said.

Weiss said the general principle that federal prosecutors cannot appeal pre-trial rulings on legal and evidentiary issues and should not be deviated from just because classified information is at issue.

“I was a prosecutor myself. Many times, I lost things I’d have loved to appeal,” Mr. Weiss said. “I was stuck.”

However, Reilly said Congress was clear that cases involving national secrets should be handled differently. “The point… is to get it right before classified information is disclosed,” the prosecutor said.

Through his attorney, Mr. Rosen asked to be admitted to the secret portion of the argument yesterday but he was never allowed in.

Both sides in the case seemed to agree that if information came from Israel, even if it passed through U.S. Government hands, it could not be a basis for the charges against Rosen and Weissman. That seemed puzzling, since the mere fact that information came from a foreign government is usually a good enough reason to get it classified.

Lowell told me after the session that the reason for the discrepancy is that the Espionage Act refers to disclosure of "national defense information," not "classified" information. Some classified information may not be NDI and some NDI may not be classified, though it has to be "closely held."

Based on the comments made by the judges, it appeared they were unlikely to disturb Judge Ellis's rulings, but such predictions are no science.

For what it's worth, Judge Shedd was appointed by President George W. Bush. Judge King was appointed by by President Clinton. Judge Gregory received a rare recess appointment from Clinton before being nominated to a permanent seat by President Bush.

I was struck by an Obama campaign spokesman's comment to the Associated Press that the ACORN-affiliated voter registration group Project Vote may have used Federal Election Commission filings posted on the Internet to solicit contributions from maxed-out Obama donors.

Yes, anyone could easily do that. But using such a list to solicit donations of any kind would be illegal under federal law. See this helpful FEC brochure, making its second appearance on this young blog. It looks to me like it could be a criminal violation, if a person used the FEC data "knowingly and willfully." (Yes, but, what if they got it from HuffPost? Seriously, is it possible to launder information?)

Anyway, a fired Project Vote staffer, Anita MonCrief, told John Fund of the Wall Street Journal the donor information was coming directly from Democratic campaigns. The Obama campaign, for the record, denies cooperating with the ACORN affiliate.

If the Obama campaign, or the Democratic National Committee, or other campaigns, gave or sold donor lists to Project Vote, that would be perfectly legal, though perhaps politically stupid.

A spokesman for Project Vote, Michael McDunnah, told the AP the group "did not receive any donor list from the Obama campaign and does not have any cooperation with the Obama campaign." McDunnah has not yet responded to my e-mail asking where the solicitation lists did come from.

So it is possible the law was broken here, though if it was, it doesn't appear to be by the Obama campaign.

That said, I tend to view this whole fraudulent registration flap to be less than the GOP makes it out to be. No one should be submitting forged or false forms of any kind to any government agency. However, this kind of fraud is a natural byproduct of the socioeconomic status of the people political groups hire to do voter registration, petition signature collection, and the like. Some of them are alcoholics, drug addicts and the homeless, or recently were. So it is no shock that some of that subgroup start making up names when they fall behind on a quota. The critical issue to me is whether these made-up or multiply registered voters end up trying to vote in the old Chicago "early and often" style. I've seen little evidence of that so far.

"Would you go under with a surgeon who has never operated?" the spot asks, posing several questions about Senator Obama's inexperience.

That question seems awfully similar to an analogy Bill Clinton drew back when he was publicly questioning Obama's experience and rejecting the idea that inexperience is a vritue.

"That's like saying that because 100% of the malpractice cases are committed by doctors, the next time I need surgery, I'll get a chef or a plumber to do it," Mr. Clinton told Charlie Rose back in December 2007. "Experience matters."

It's not a particularly novel analogy of course. But the idea the ad has some inspiration from the Clinton comment is reinforced by the spot being released on the same day (or night) Bill Clinton and Obama made their first joint appearance on the campaign trail.

Due to the prevarication of both campaigns, this post requires the disclaimer that I have no idea if or when this ad will ever run and it could be a gimmick-video to distract the press. I bet this one is running though, as it is probably too generic and too late in the news cycle to get much news coverage.

Monday, October 27, 2008

A Virginia-based federal prosecutor who has become a polarizing figure as he doggedly pursues cases related to Islamic terrorism and extremism, Gordon Kromberg, scored another win in the U.S. Court of Appeals for the 4th Circuit yesterday.

In a per curiam opinion, a three-judge panel ruled that Kromberg had the right to seize a Fairfax, Va. home as part of the government's punishment Abdulrahman Alamoudi, a prominent American muslim leader who was sentenced to 23 years in prison after pleading guilty to participation in a scheme to assassinate Crown Prince Abdullah of Saudi Arabia.

A foreign woman with family in Kuwait, Jehad Alhindi, claimed the home, bought for $380,000 in 2003, was actually hers. Her lawyer, Henry Fitzgerald, told me Alhindi came to America for treatment of an incurable muscle disease and got help from Alamoudi, who agreed to assist her in buying a house. Ultimately, the lawyer said, Alhindi's name was left off the paperwork because lenders said they wouldn't write a mortgage with her name on it. Alhindi said she put up $3000 in earnest money and made payments on the mortgage, but Alamoudi didn't formally deed the house over to her until after he was sentenced. At a hearing held to discuss Alhindi's claim to the house, Alamoudi took the Fifth Amendment.

Fitzgerald claimed the purchase arrangement gave Alhindi "equitable title" to the home, but the three-judge panel agreed with the trial court's decision that the home effectively belonged to the government because the money Alamoudi used to buy it was ill gotten. In a reference that could give flashbacks to some law students, the appeals court's opinion notes that the Statute of Frauds, an English legal provision transplanted to America, disfavors the kind of oral contracts for real estate Alhindi claimed.

Alhindi was ordered evicted from the home back in March of last year.

Prosecutor Kromberg's tactics have drawn criticism from defense lawyers and Muslim activists, though they have not publicly made an issue of his evicting an ill woman from what she claimed was her home. However, as I noted in a profile of Kromberg published in The New York Sun a few months back, his track record at trial is pretty strong and his record before the 4th Circuit is even stronger. Now it is stronger still.

The Sun's July story was headlined, "A Prosecutor Is Called 'Relentless.'" The Washington Post followed in September with an article titled, "Relentless Terrorism Prosecutor Faces Accusations of His Own." Completing the circle, Steve Emerson's Investigative Project attacked the Post report here, but, at some disappointment to me, left my earlier account unscathed.

Friday, October 24, 2008

A former four-star U.S. Army general, Anthony Zinni, and an arms-laden freighter seized by Israel in 2002 could both figure prominently in the defense of two pro-Israel lobbyists facing trial on charges they illegally obtained and disclosed classified information.

A newly-declassified brief filed with the Fourth Circuit in Richmond, Va. shows defense lawyers for the two lobbyists, Steven Rosen and Keith Weissman, plan to question Zinni about a briefing he gave Rosen and represenatives of three other pro-Israel groups over dinner on January 22, 2002.

"Zinni had just returned from the Middle East where he met with [Palestinian Authority President Yassir] Arafat, among others. Zinni also told Rosen and the others details about the Karine-A and his meeting with Arafat," the defense filing said in a footnote. The Zinni dinner, which the brief said occured "in a public place," is critical to the defense largely because of the meeting's timing. The indictment in the case says Rosen got classified information from the U.S. Deputy Chief of Mission for Iraq David Satterfield at a meeting on January 18, 2002 and disclosed it to "a foreign national" on January 23, 2002.

If the Zinni session with four representatives of American Jewish groups took place on January 22 and covered much of the same information Satterfield relayed, Rosen may reasonably have thought he had not received an illegal leak from the diplomat but information Rosen was authorized to receive and distribute to his colleagues at the American Israel Public Affairs Committee and to Israeli contacts. Or so the defense will argue.

This sequence of events is apparently what led Judge T.S. Ellis III to grant a subpoena for Zinni over prosecution objections last year. Judge Ellis's own explanation for granting subpoenas for Zinni, Secretary of State Rice, and about a dozen other officials and former officials, remains under seal.

The defense brief discussing the Karine-A and Zinni was filed with the 4th Circuit in August and unsealed in heavily redacted form earlier this month. Steve Aftergood of the Federation of American Scientists has helpfully compiled and posted the document here.

The fact that the Zinni meeting could play a role in Rosen and Weissman's defense was reported last year in the Forward. However, it was not clear at that time that the defense was claiming that Zinni passed on some of the same information which came from Satterfield a few days earlier nor was it reported that the Karine-A incident figured in the Satterfield discussion, the Zinni session and the allegedly illegal disclosure by Rosen. The Forward report also put the meeting in 2003, while the new defense brief has it taking place a year earlier.

A passel of trial dates have been set and vacated in the case, which was filed in 2005. The trial is on hold at the moment as the government appeals a couple of Judge Ellis's rulings regarding classified information he said the defense was entitled to use at trial.

President Bush essentially severed contact with Arafat after the Palestinian leader implausibly denied knowledge of the Karine-A's cargo of rifles, anti-tank missiles, rockets, mortars and other weapons apparently destined for the Gaza Strip.

One troubling aspect of the newly-disclosed brief is that whoever is reviewing and redacting such documents for public release seems to have confused classification for national security reasons with the use of secrecy or pseudonyms for privacy reasons. Satterfield's name is sometimes left in the public version of the brief, while at other points it is whited out. The name of a former National Security Council staffer who allegedly gave Rosen and Weissman classified information, Kenneth Pollack, is withheld, even though Pollack has publicly confirmed that he believes he is the official called "USGO-1" in the indictment. The name of a Pentagon official appears to have been similarly deleted from the public version of the defense brief.

While the government is entitled to great deference in its decisions to keep information out of the public domain for national security reasons, the deletion from court filings of names or other details for some other reason, such as privacy, ought be governed by the laws, rules and constitutional principles which apply in that context and not by the lax review which applies to classification decisions. In other words, names of witnesses are not ordinarily deleted from defense pleadings or court orders in criminal and civil cases and they shouldn't be in the AIPAC case just because of the nature of the charges.

Neither Pollack nor Satterfield nor the Pentagon official whose name was apparently redacted from the brief was charged with any crime, though a Pentagon analyst, Larry Franklin, pled guilty in the case, was sentenced to almost 13 years in prison, and is cooperating with prosecutors. Rosen and Weissman, who were fired from AIPAC in 2005, have pled not guilty.

Wednesday, October 22, 2008

In San Francisco today, former Bush adviser Karl Rove got somewhat hot under the collar today when former senator George Mitchell alluded to Rove's allegedly dirty tactics in when George Bush faced Senator McCain in the South Carolina primary back in 2000. KGO's Mark Mathews has the story and video.

Rove demanded that Mitchell get specific about what inappropriate tactics Rove allegedly used in that race. Mitchell declined to elaborate. (Here is the account of Mr. McCain's campaign manager then and now, Rick Davis, though he doesn't blame Rove specifically for the racist fliers.)

The exchange reminds me a bit of a similar moment in which another senator, Alan Simpson of Wyoming, said that he had scandalous faxes on Anita Hill in his suit jacket, but declined to detail the allegations. Because the South Carolina claims are on the record, what Mitchell did isn't as outrageous as what Simpson did, but the exchange today sure was awkward.

To his credit, Senator McCain posted a database of all donations, including small ones, on his Web site back in July. I looked at the site for the first time today and immediately see some glitches in the data, but he deserves kudos for making the effort. The Republican National Committee, which is in essence fundraising for McCain since he decided to take public financing for the general election, is promising its own small-gift data online very soon.

This kind of voluntary disclosure has some significant drawbacks for the campaigns and for the donors, both in legal and practical terms. While information on donors who give more than $200 is freely available from the Federal Election Commission, a federal law makes it illegal to use data from those reports for commercial purposes or to solicit political contributions. However, when a campaign voluntarily releases lists of donors, that restriction does not apply. So someone could harvest all the donor information from Mr. McCain's Web site and try to make a mailing list out of it. Such an enterprising soul would face the challenge of finding exact addresses for the donors, since the McCain site only gives cities. states and zip codes.

One possible work-around for all of this is for campaigns to just include the under-$200 donations in FEC reports, even though such gifts are not required to be reported. That would probably pick up the solicitation protection while also providing the public disclosure. I have a memory that Nader or Perot may have done this in some earlier presidential campaign, though I could be mistaken.

While we're on the subject, one told-ya-so. Back in February, when most news outlets were still oohing and aahing at the staggering sums Obama and other candidates were raising online, I. did an article for the Sun, "Secret Money Floods Campaigns," which essentially predicted trouble--including illegal foreign donations--in the $118 million in small gifts made up to that point. Eight months later, here we are.

For the record, I'm dubious that the number or sum of illegal or misreported donations will amount to much as a percentage of donations, especially given how much Obama has raised. But given the history of illegal foreign gifts and other shenanigans in American political campaigns, the players could and probably should be more vigilant about this stuff.

For those of us who have journalism in our blood, it is hard to go cold turkey, even for a short while. Since the demise a few weeks ago of the newspaper I worked for for the past several years, The New York Sun, I have felt the impulse on a few occasions to share thoughts about developments in politics, law and other fields of interest to me.

So, I have dusted off my defunct Blogger account and will post those musings here as I consider where next I will hang my hat.